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By MARY JACOBY, Times Staff WriterA lack of U.S. supervision over constitutional drafting could mean a return to a hardline state, reformers fear.
WASHINGTON - In Afghanistan, where the chief justice wants nonbelievers beheaded and women shrouded in burqas, a new Taliban-friendly constitution is taking shape with little oversight from the United States, religious freedom advocates say.
"I'm concerned that the United States government is not engaged," said Nina Shea, a Republican-appointed member of the U.S. Commission on International Religious Freedom. "Despite the president's inspirational words about creating democracies and freedoms around the world, the policies on the ground are quite different."
The Democrat-appointed chairwoman of the commission, Felice Gaer, agreed. "My hope is, the U.S. government takes that commitment and the words of the president seriously and ensures it's a constitution that entrenches freedom, not its foes."
Despite spending billions on war and reconstruction in Afghanistan, the United States has ceded oversight of the constitutional drafting process to an Italian-led team of the United Nations and outside consultants.
"The Italian view seems to be quite consciously, "We're not going to be able to hand the Afghans a legal code,' that Western countries can't get away with that," said Jeffrey Laurenti, director of policy studies at the United Nations Association of the United States of America, a nonprofit organization.
Calls to officials at the Italian mission to the United Nations in New York were not returned.
A top-secret draft of the new constitution is circulating in Washington. American officials who have read it refused to discuss its contents, saying they could lose their security clearances. Officials at the Afghan Embassy in Washington did not return phone calls seeking comment.
But a person concerned with promoting democracy in Afghanistan who has been briefed on the draft said it guarantees few of the freedoms the United States pledged to promote after ousting the Taliban's fundamentalist Islamic government in 2001.
Equal rights for women and ethnic minorities are not spelled out; freedom of speech and religion is lacking, and there is no firm commitment to the rule of law and international treaties, the person familiar with the draft said.
Punishments that would be considered cruel and unusual in the West, such as death by stoning for sexual crimes, are not prohibited. And reformers who criticize the government could be jailed as blasphemers, the person said.
Starting this month, a series of regional meetings will be held in Afghanistan to discuss the constitution, though the public won't be able to read a draft until Sept. 1. The plan is to convene a loya jirga, or Afghan grand council, in October to ratify the document.
Asked about the controversy, State Department spokesman Philip Reeker said: "Right now I'm saying we're pleased there's a process to begin consultations on it. We'll continue to support the Afghan government and the U.N. assistance mission through the conclusion of the constitutional loya jirga."
Extreme secrecy surrounding the drafting process has helped religious conservatives dominate the nine-member committee of Afghans who produced the draft, according to a June 12 report by the nonprofit International Crisis Group, a think tank devoted to conflict prevention.
"Those groups who are in power in Kabul are probably more religiously conservative than the majority of Afghans," said the report's author, Aziz Haq. Their allies "have been able to speak freely, where other more progressive or moderate groups have felt less able."
Afghans agree that some form of Islamic law will be enshrined in their constitution, Haq said. The question is whether it will be the only legal tradition followed.
In its first public meeting in November 2002, drafting committee member Nematollah Shahrani, the vice president of Afghanistan, suggested the constitution would respect democracy.
"Afghanistan is a Muslim society, and so we will respect Muslim values. But we are also a member of the international community, and we want to end our isolation," Shahrani said.
However, at a religious freedom commission forum in Washington last year, Musa M. Maroofi, a member of the drafting committee who is considered a progressive, was pessimistic. He said American-style freedoms will have difficulty taking root in a country where 30 years of war and poverty have allowed fundamentalism to flourish.
"Can you say things in Afghanistan, in a Muslim country, that you can say here under the First Amendment? No, there are a lot of things that you cannot say," Maroofi said.
As for women's rights: "Husbands have so much authority you won't believe it. Can you change it by the constitution? No. It may take a while. Of course, we have to work on that."
And freedom of worship? "I don't want the illusion to develop in your mind" that an Afghan will be allowed to convert to Judaism or Christianity, Maroofi told the commission. "It will be not permissible by the provisions of the constitution."
Critics argue that the United States, having spent billions of dollars on war and reconstruction in Afghanistan, cannot afford to let the country sink back into the Middle Ages.
Moreover, "If we didn't pay enough attention to Afghanistan, then might the same happen in Iraq?" said Paul Marshall, a senior fellow at the Center for Religious Freedom in Washington.
American reformers are wary of Afghanistan's influential chief justice, Fazal Hadi Shinwari, a strict Islamist whose allies reportedly helped write the draft.
Press reports say his office in Kabul is decorated with a sword and lash left by the Taliban that he keeps displayed as a symbol of what awaits infidels and thieves.
"We are not eager to execute criminals or chop off heads, but if all the conditions are fulfilled, it is required," Shinwari told the Washington Post.
In other interviews, Shinwari has sought to draw a distinction between himself and the Taliban. Stonings, amputations and executions, he has said, should be meted out in private, not as spectator events in Kabul's sports stadium.
As for women, Shinwari has said Islamic law, or sharia, requires them to remain shrouded in dark burqas.
The religious freedom commission's Shea blasted Shinwari in the National Review in October, saying under his influence, "Afghanistan is in imminent danger of being reconstituted as an Islamic state under hardline sharia law."
In Washington, activists have been working behind the scenes to persuade the Bush administration to appoint a high-level official to assist in the process.
"It should come as no surprise that there are battles going on beneath the surface," said Michael Horowitz, director of the Project for International Religious Liberty at the Hudson Institute think tank.
For now, the West's team consists of the Italians and various outside consultants, including two hired by the nonprofit Asia Foundation. One is a former Asia Foundation employee and the other is a Hong Kong-based lawyer from Kenya. Both have experience in constitutional issues.
The foundation is a subcontractor of Management Systems International, a Washington consulting firm that received a $14-million grant from the U.S. Agency for International Development to assist Afghanistan on governance issues.
About $2-million of that grant was funneled to the Asia Foundation's work on the constitution, said Larry Cooley, the company's president. He stressed, however, that the Afghans are in charge.
"The Afghans are very clear about who is writing the constitution, and it's them," he said.
Reformers fear this hands-off attitude will make a mockery of the vision Bush outlined for Afghanistan in his January 2002 State of the Union address.
"America will always stand firm for the nonnegotiable demands of human dignity: the rule of law, limits on the power of the state, respect for women, private property, free speech, equal justice and religious tolerance," Bush said to applause.
Afghanistan has had several constitutions, all specifying Islam as the national religion, but they have been swept away by coups and war. The country's relatively liberal 1964 constitution, written under the former king, Zahir Shah, has been the starting point for the new draft.
Skeptics like Maroofi insist that a constitution can guarantee only those freedoms that society is ready to accept. But American observers say a liberal constitution remains an important marker.
"Even if it's not fully implemented, it will at least be on the books and give people something to point to to protect themselves," said David L. Cahn, the religious freedom commission's former general counsel and an officer in the U.S. Embassy in Kabul from 1969 to 1971.